The Bad Things You’ve Done Can Make You Look Bad

One morning, as she arrived at work at the IRS in Chattanooga, an African-American man in a red and white patterned shirt approached her with a gun. He ordered her to start her car. She did. He drove away in it.

The police later arrested Gary Clay, an African-American man, for the carjacking.

Ms. White never identified Mr. Clay for the police. And, before trial, she died in an automobile accident.

About an hour after the carjacking, an unshaven African-American man used some Ms. White’s bank cards to withdraw money. The ATM had a camera that captured a picture of the man. An FBI agent thought that the man in the picture was Mr. Clay.

The police looked for Ms. White’s car for days. Finally, they found it in an apartment complex. The parking space it was in was assigned. When they went to the unit assigned to the space, they found two women, Ms. Abernathy and Ms. Hancock. They also found Mr. Clay.

Ms. Hancock leased the unit, and let the police search the apartment. The police found the keys to Ms. White’s car. Inside the car, they found a CD that had a number of pictures on it – including photos of Mr. Clay wearing a red and white shirt similar to the one worn by the carjacker.

Rule 404(b) lets the government in a criminal case introduce evidence about a person’s prior bad acts in order to show something relevant to the case about them – but not to just make the person look bad. As the rule says, the evidence must be relevant to something like “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

The rationale behind this makes sense. Imagine a person who isn’t allowed to have a gun is found with a gun in his coat. If he knew it was a gun, that would be illegal. If his defense was that he didn’t know what the heavy lump of metal in his coat was and it was just an innocent mistake (“My crazy friends do the darnest things!”), you could see why it would be fair to introduce evidence that he’d had a gun in that coat before, which would make the jury think this is less likely to be a mistake.

Similarly, if a person was convicted of breaking into houses and leaving a DVD of Exit Through the Gift Shop behind, then, later, is on trial for breaking into a house where a copy of Exit Through the Gift Shop was left, you could see how the prior burglaries would be relevant at a trial for the later one.

On the other hand, the rule is ripe for abuse. I had a case where a gun was found in a coat and we were arguing it wasn’t our client’s coat. He had a prior conviction that involved the use of a pellet gun in an assault. The government argued that the prior pellet gun assault should be admitted under Rule 404(b). Though I still, to this day, do not understand how that’s allowable under the rules, the court let the evidence about the prior pellet gun assault into evidence.

And, the government can’t introduce evidence under 404(b) if the prejudice that comes from telling the jury about a person’s prior bad behavior outweighs the advantages to telling the jury in its quest for the truth. This is contained in Rule 403.

Sometimes, telling people the bad things a person has done, will just make the person look really bad.

In Mr. Clay’s case, the government introduced evidence that Mr. Clay previously drove up to a woman, who was 15 years old at the time, and told her to get in his car. When she didn’t, he got out of the car and hit her in the face with a gun.

The woman herself testified, and told the jury that she thought she was going to die that day. It isn’t hard to imagine that this was powerful evidence.

The government introduced this evidence, presumably, so the jury would know that Mr. Clay knows what it means to hurt someone near a car.

Mr. Clay was convicted, and sentenced to thirty years in prison.

He appealed the 404(b) ruling.

The Sixth Circuit court of appeals, in United States v. Clay, reversed. The appellate court found that the evidence of Mr. Clay’s assault on the 15 year old didn’t have enough to with his carjacking charge to be admissible. The court held,

the government argues that the assault is admissible to prove specific intent because it shows that Clay could develop the intent to cause serious bodily harm to innocent strangers who resist his demands. Considering both the case law and the purposes of Rule 404(b), this sweeps too broadly and risks eroding the Rule’s very purpose. It perches perilously close to proving specific intent by showing propensity, as it suggests that a person who engages in bad behavior toward another is likely to do so again. The two offenses at issue–assault and carjacking–are too unrelated and too far apart in time to be probative of whether Clay had the specific intent to do harm to White; they merely show the criminal character of Clay.

At the same time, the Sixth Circuit noted that this evidence was much more prejudicial than probative. The testimony about an assault on a 15 year old is virtually guaranteed to move a jury to think of Mr. Clay as a Very Bad Man. And it has almost nothing to do with whether he’s the man in the white and red checked shirt who committed the carjacking.

On that basis, the Sixth Circuit reversed the conviction and remanded for a new trial.

This is a good case. It’s hard to express how maddening it is to see the gulf between what Rule 404(b) says and the way it’s applied. It’s a lovely thing to see a court actually applying the plain language of 404(b).